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2012 DIGILAW 631 (GAU)

Vijay Kumar Sharma v. Bulbul Sharma

2012-05-29

I.A.ANSARI

body2012
ORDER I.A. Ansari, J. 1. With the help of this revision, the accused-petitioner has sought to get set aside and quashed the proceedings of the Complaint Case No. 1390C/2004, wherein an order has been made, on 07.07.2004, by the learned Sub-Divisional Judicial Magistrate, No. 2, Kamrup, at Guwahati, taking cognizance of offences under Sections 498A and 406 IPC and directing issuance of summons accordingly to the petitioner and some others and also issuance of search warrant for seizure of the alleged stridhan of the complainant. I have heard Mr. J. Roy, learned counsel for the accused-petitioner, and Mr. Z. Kamar, learned Public Prosecutor, Assam. 2. Before entering into the merit of the present revision, it needs to be pointed out that the opposite party herein lodged a complaint, in writing, which the accused-petitioner seeks to get quashed, the complainant's case being, in brief, thus: The marriage of the complainant was solemnized with the accused, on 28.04.1985, according to Hindu rites and customs. On the occasion of the marriage, many articles, gold ornaments and other gifts were given to the complainant. The complainant and the accused lived together as husband and wife till 2001, but they remained issueless. In the year 2001, the accused and other inmates of his house started torturing the complainant both mentally as well as physically, demanding car, flat/house and cash. Since acceding to such demands was beyond the capacity of the parental family of the complainant, she remained silent. The family members of the accused-petitioner continued with their mental as well as physical torture on the complainant and, one day, the present accused-petitioner threw out the complainant from his house and threatened to kill her if she did not leave Guwahati. As the complainant did not want to end her married life, she tried her best to reach a settlement, but failed. On having failed to live with her husband and relatives, she demanded return of her Stridhan, which had been entrusted to her husband and were under the dominion and enjoyment of the accused-petitioner and his relatives. However, the accused persons, who had been entrusted with the Stridhan of the complainant, kept all her properties (stridhan) with them, when she was driven out of her matrimonial house. In fact, even the ornaments, which the complainant had been wearing, at the time, when she was being driven out, were snatched away by the petitioner. However, the accused persons, who had been entrusted with the Stridhan of the complainant, kept all her properties (stridhan) with them, when she was driven out of her matrimonial house. In fact, even the ornaments, which the complainant had been wearing, at the time, when she was being driven out, were snatched away by the petitioner. Inspite of repeated requests for refund of Stridhan properties entrusted to the accused persons, as mentioned above, the same have not been returned and, instead, have been misappropriated and converted to the personal use of the accused persons. In fact, the accused persons have been dishonestly disposing of the properties of the complainant. 3. Following the complaint, which was so lodged, and having taken cognizance of offences, under Section 498A and 406 IPC, the learned Court below examined the complainant and her statement was recorded under Section 200 CrPC. In her statement, so recorded, the complainant repeated substantially the allegations, made by her in the complaint, of her having been subjected to cruelty and also stated that despite demands made by her, her Stridhan had not been returned to her by the accused persons, who had been entrusted with the custody of her Stridhan, and the same were being dishonestly misappropriated by the accused-petitioner. 4. Having found that cases of commission of offences under Section 498A and 406 IPC had been made out, the learned Court below directed issuance of summons against the accused persons and also issuance of search warrant for seizure of Stridhan enlisted with the complaint and to give custody thereof to the complainant on her executing a bond of Rs. 20,000/-. 5. Pursuant to the search warrant, so issued, the Stridhan, as demanded by the complainant, have been seized and the custody thereof have already been handed over to her. 6. The accused-petitioner, who is husband of the complainant, now, seeks quashing of the complaint by making counter allegation against the complainant, the counter allegation being that the complaint, in question, has been lodged by the complainant as a measure of counter blast to the petition seeking dissolution of marriage, which the accused-petitioner has filed in the Court of the Principal Judge, Family Court, Guwahati. In support of his case, the accused-petitioner has also relied upon some letters, which are claimed to have been exchanged between the complainant and the family members of the accused-petitioner. In support of his case, the accused-petitioner has also relied upon some letters, which are claimed to have been exchanged between the complainant and the family members of the accused-petitioner. With the help of these letters, the accused-petitioner has sought to show that there is nothing in these letters to establish that any demand for dowry had been made by the accused-petitioner or his family members. 7. While considering the present application made under Section 482 Cr.P.C., it needs to be noted that the law, with regard to quashing of criminal complaint, is no longer res Integra. A catena of judicial decisions has settled the position of law on this aspect of the matter. I may refer to the case of R.P. Kapur Vs. State of Punjab : AIR 1960 SC 866 , wherein the question, which arose for consideration, was whether a first information report can be quashed under Section 561A of the Code of Criminal Procedure, 1898. The Court held, on the facts before it, that no case for quashing of the proceeding was made out. Gajendragadkar, J, speaking for the Court, observed that though, ordinarily, criminal proceedings, instituted against an accused, must be tried under the provisions of the Code, there are some categories of cases, where the inherent jurisdiction of the Court can and should be exercised for quashing the proceedings. One such category, according to the Court, consists of cases, where the allegations in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases, no question of appreciating evidence arises and it is a matter merely of looking at the FIR or the complaint in order to decide whether the offence alleged is disclosed or not. In such cases, said the Court, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal Court to be issued against the accused. From the case of R.P. Kapoor (supra), it becomes abundantly clear that when a look into the contents of a complaint shows that the contents of the complaint, even if taken at their face value and accepted to be true in their entirety, do not disclose commission of offence, the complaint shall be quashed. 8. From the case of R.P. Kapoor (supra), it becomes abundantly clear that when a look into the contents of a complaint shows that the contents of the complaint, even if taken at their face value and accepted to be true in their entirety, do not disclose commission of offence, the complaint shall be quashed. 8. As a corollary to what has been discussed above, it is also clear that if the contents of the complaint disclose commission of offence, such a complaint cannot be, ordinarily, quashed. 9. Laying down the scope of interference by the High Court in matters of quashing of FIR or complaint, the Supreme Court, in State of Haryana & Ors. Vs. Bhajanlal & Ors., reported in 1992 Supp (1) SCC 335, laid down as follows :- 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the inherent powers under section 482 of the Code, which we have extracted and reproduced above, we give the following categories of cases by way of illustration, wherein such power could be exercised either to prevent abuse of the process of the any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines of rigid formulae and to give an exhaustive list of myriad kinds of cases, wherein such power should be exercised :- (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirely, do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations made in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (3) Where the uncontroverted allegations made in the FIR or complaint and evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegation in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned act (under which criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance of the accused and with a view to spite him due to private and personal private grudge. 10. In the case of Bhajanlal (supra), the Supreme Court gave a note of caution on the powers of quashing of criminal proceedings in the following words :- 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extra ordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. (Emphasis is added) 11. (Emphasis is added) 11. It is clear from a close reading of the principles laid down, in the case of R.P. Kapoor (supra) and Bhajanlal (supra), that broadly speaking, quashing of a First Information Report or a complaint is possible (a) when the allegations made, in the First Information Report or the complaint, even if taken at their face value and accepted in their entirely as true, do not prima facie constitute any offence or make out a case against the accused; (b) when the uncontroverted allegations, made in the FIR or complaint and evidence collected in support of the same, do not disclose the commission of any offence and/or make out a case against the accused; and (c) when the allegations made in the FIR or complaint are so absurd and inherently improbable that on the basis of such absurd and inherently improbable allegations, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 12. In other words, when the allegations, made in a complaint, disclose commission of an offence, such a complaint cannot, ordinarily, be quashed by relying upon some other materials on which will depend the defence of the accused, for, in such cases, truthfulness or otherwise of the allegations contained in the complaint or the probability of the defence plea can be determined only by effective investigation or at the trial. 13. In Harshendra Kumar D. Vs. Rebatilata Kiley & Ors., reported in (2011) 3 SCC 351 , the Supreme Court has made it clear that it is not an absolute rule of law that the High Court, while exercising its jurisdiction under Section 482 CrPC, or, while exercising its revisional jurisdiction under Section 397 CrPC, cannot, under any circumstances, look into the nature of public document or such materials, which are beyond suspicion or doubt, in order to ascertain if the criminal prosecution should or should not be allowed to proceed. In fact, the Supreme Court has also made it clear, in Harshendra Kumar D. (supra), that no greater damage can be done to the reputation of a person than dragging him in a criminal case. In fact, the Supreme Court has also made it clear, in Harshendra Kumar D. (supra), that no greater damage can be done to the reputation of a person than dragging him in a criminal case. The Supreme Court has, therefore, held, in Harshendra Kumar D. (supra), that the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to the appellant's resignation from the post of director of the company, which, if looked into, would have made it clear that the appellant's resignation from the post of director of the company was much before the cheques had been issued by the company. The relevant observations, which appear, in this regard, at paragraph 25 and 26, in Harshendra Kumar D. (supra), read as under : 25. In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused, which are in the nature of public documents or the materials which are beyond suspension or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an inquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents-which are beyond suspension or doubt-placed by the accused, the accusations against him cannot stand, it would be travesty of justice if the accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage. 26. Criminal prosecution is a serious matter; it affects the liberty of a person. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage. 26. Criminal prosecution is a serious matter; it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. In our opinion, the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to the appellant's resignation from the post of Director of the Company. Had these documents been considered by the High Court, it would have been apparent that the appellant has resigned much before the cheques were issued by the Company. 14. From the law laid down in Harshendra Kumar D. (supra), it becomes clear that when the High Court is approached for quashing of a criminal prosecution in exercise of its extraordinary jurisdiction under Section 482 CrPC, or in exercise of its revisional jurisdiction under Section 397 CrPC, the High Court has to bear in mind that criminal prosecution affects the liberty of a person and there can be no greater damage done to the reputation of a person than dragging him in a criminal case. There is, therefore, no absolute bar, on the High Court's power, to take into consideration any uncontroverted document, which may have come on record, for the purpose of arriving at a decision as to whether a criminal prosecution should or should not be allowed to continue and, if the Court, on the basis of any public or uncontroverted document, comes to the conclusion that allowing the criminal prosecution to proceed, in such a case, would amount to abuse of the process of the Court, the High Court has the duty to quash such a proceeding. 15. It is, no doubt, true that while exercising its inherent jurisdiction under Section 482 CrPC, or its revisional jurisdiction, under Section 397 CrPC, where a complaint or FIR is sought to be quashed, it is not proper, on the part of the High Court, to consider the defence of the accused or enquire into the correctness or veracity of the accusations made against the accused. Nonetheless, in appropriate cases, if, in the face of the documents placed by the accused, which are beyond suspicion or doubt, the accusations against the accused cannot stand, it would be perversity of justice if the accused is asked to face trial, for, if it is so done, it would amount to denial of justice and would be tantamount to preventing justice from being done. This would be nothing short of abuse of the process of the Court. 16. Before entering into the merit of the present revision, it is also pertinent to note that in Indian scenario, the presents or gifts, which a bride receives on the occasion of solemnization of her wedding (which are normally described as dowry) fall into three broad categories, namely, (a) properties, which are intended for exclusive use of the bride, for example, the gifts received by her in the form of ornaments, wearing apparels, etc. for her exclusive use and enjoyment; (b) articles and gifts, which are received by a bride for common use and enjoyment in the matrimonial home, and (c) articles, given as presents or gifts to the husband or the members of the husband's family. 17. So far as properties falling in category (c) are concerned, the wife can have no claim over such properties. As far as properties described in category (b) are concerned, both the husband and wife remain in joint possession of the same; but so far as the properties described in category (a) are concerned, such properties are exclusive properties of the wife and can be safely termed as her stridhan on which she has exclusive right of use and enjoyment. 18. In the context of the facts of the present case, one may refer to the decision, in Rashmi Kumar Vs. Mahesh Kumar Bhada, reported in (1997) 2 SCC 397 , wherein the Supreme Court, while laying down the meaning and significance of Stridhana and the right of possession and use thereof, held as under : 10. It is thus clear that the properties gifted to her before the marriage, at the time of marriage or at the time of giving farewell, or thereafter, are her stridhana properties. It is her absolute property with all rights to dispose at her own pleasure. He has no control over her stridhana property. It is thus clear that the properties gifted to her before the marriage, at the time of marriage or at the time of giving farewell, or thereafter, are her stridhana properties. It is her absolute property with all rights to dispose at her own pleasure. He has no control over her stridhana property. Husband may use it during the time of his distress but nonetheless he has a moral obligation to restore the same or its value to his wife. Therefore, stridhana property does not become a joint property of the wife and the husband and the husband has no title or independent dominion over the property as owner thereof. 11. In this backdrop, the question that arises for consideration is: Whether the fact of a wife's having been driven out from the matrimonial home without taking along with her stridhana properties, amounts to entrustment with the husband within the meaning of Section 405 IPC? Section 405 defines "criminal breach of trust" thus : 405. Criminal breach of trust.-Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits 'criminal breach of trust'. *** *** *** 13. Thus, when the wife entrusts her stridhana property with the dominion over that property to her husband or any other member of the family and the husband or such other member of the family dishonestly misappropriates or converts to his own use that property or wilfully suffers any other person to do so, he commits criminal breach of trust. Thus, when the wife entrusts her stridhana property with the dominion over that property to her husband or any other member of the family and the husband or such other member of the family dishonestly misappropriates or converts to his own use that property or wilfully suffers any other person to do so, he commits criminal breach of trust. The essential ingredients for establishing an offence of criminal breach of trust as defined in Section 405 and punishable under Section 406 IPC with sentence for a period up to three years or with fine or with both, are: (i) entrusting any person with property or with any dominion over property; (ii) the person entrusted dishonestly misappropriating or converting to his own use that property; or dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust. The expression "entrustment" carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Entrustment is not necessarily a term of law. It may have different implications in different contexts. In its most general significance, all its imports is handing over the possession for some purpose which may not imply the conferment of any proprietary right therein. The ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit. In Pratibha Rani's case the majority has extensively considered the words "entrustment" of and "dominion" over the property. All the case-law in that behalf was exhaustively considered obviating the necessity to tread once over the same. In order to establish entrustment of dominion over the property, both the majority and minority relied on in particular the judgment of this Court in Velji Raghavji Patel v. State of Maharashtra wherein it was held that in order to establish entrustment of dominion over the property to an accused person, mere existence of that person's dominion over the property is not enough. It must be further shown that his dominion was the result of entrustment. The question therein pertained to the entrustment with the dominion over the partnership property by one partner to the other. It was held that the prosecution must establish that the dominion over the assets or particular assets of the partnership was by a special agreement between the parties. The property of the partnership being a partnership asset, every partner has a right to or a dominion over it. It was held that special agreement was necessary to constitute an offence of criminal breach of trust defined under Section 405 IPC. In view of the finding that stridhana property is the exclusive property of the wife on proof that she entrusted the property or dominion over the stridhana property to her husband or any other member of the family, there is no need to establish any further special agreement to establish that the property was given to the husband or other member of the family. It is always a question of fact in each case as to how the property came to be entrusted to the husband or any other member of the family by the wife when she left the matrimonial home or was driven out therefrom. No absolute or fixed rule of universal application can be laid down in that behalf. It requires to be established by the complainant or the prosecution, depending upon the facts and circumstances of the case, as to how and in what manner the entrustment of the stridhana property or dominion over her stridhana came to be made to the husband or any other member of the family or the accused person, as the case may be. We are in respectful agreement with the majority view in Pratibha Rani's case and consequently requires no reconsideration. *** *** *** 16. The question, therefore, whether it is a continuing offence and limitation began to run everyday loses its relevance, in view of the above finding. The decisions cited in support thereof viz., Vanka Radhamanohari v. Vanka Venkata Reddy and Balram Singh v. Sukhwant Kaur hence need not be considered. It is well-settled legal position that the High Court should sparingly and cautiously exercise the power under Section 482 of the Code to prevent miscarriage of justice. The decisions cited in support thereof viz., Vanka Radhamanohari v. Vanka Venkata Reddy and Balram Singh v. Sukhwant Kaur hence need not be considered. It is well-settled legal position that the High Court should sparingly and cautiously exercise the power under Section 482 of the Code to prevent miscarriage of justice. In State of H.P. v. Pirthi Chand two of us (K. Ramaswamy and S.B. Majmudar, JJ.) composing the Bench and in State of U.P. v. O.P. Sharma a three-Judge Bench of this Court, reviewed the entire case-law on the exercise of power by the High Court under Section 482 of the Code to quash the complaint or the charge-sheet or the first information report and held that the High Court would be loath and circumspect to exercise its extraordinary power under Section 482 of the Code or under Article 226 of the Constitution. The Court would consider whether the exercise of the power would advance the cause of justice or it would tantamount to abuse of the process of the court. Social stability and order require to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon the exercise of the inherent power vested in the court. Same view was taken in State of Haryana v. Bhajan Lal and G.L. Didwania v. ITO etc. 19. In the case at hand, a minute scrutiny of the contents of the complaint shows that specific assertions have been made by the complainant that she had entrusted her properties with the accused-petitioner. What is, thus, clear from the complaint is that a number of valuable properties had been brought by the complainant from her parental house, on the occasion of her marriage, to her matrimonial house for her exclusive use and were entrusted to her husband. It is also in the evidence of the complainant that she was driven out of her matrimonial house by the accused persons retaining with them the properties, which the complainant had so brought with her. 20. The truth or falsity of a complaint is a question for determination at the trial. It is also in the evidence of the complainant that she was driven out of her matrimonial house by the accused persons retaining with them the properties, which the complainant had so brought with her. 20. The truth or falsity of a complaint is a question for determination at the trial. Though there is no absolute bar for consideration of a document in a proceeding for quashing, the documents, which have been placed on record, in the present case, are those documents, the authorship whereof and the correctness and/or veracity whereof are yet to be established. Basing, therefore, on such documents, it is not possible to hold that the case, which the complainant lodged, is false. 21. In the circumstances as indicated above, it is wholly impermissible to quash the complaint. 22. In the result and for the reasons discussed above, this revision fails and the same shall stand dismissed. Send back the LCR.